Storey v. Rubin, Civil Action No. 1:96-CV-2320FM.

• Decision Date: 25 April 1997
• Docket Number: Civil Action No. 1:96-CV-2320FM.
• Citation: 976 F.Supp. 1478
• Parties: W. Gilbert STOREY and Lynn D. Abernethy, Jr., Plaintiffs, v. Robert RUBIN, Ronald A. Glazer, Michael Morgan-Gaide, Nelson A. Brooke, Paul Harrington, Robert M. Finer, Gilbert Casellas, and Ronald Blumenthal, Defendants.
• Court: U.S. District Court — Northern District of Georgia

976 F.Supp. 1478

W. Gilbert STOREY and Lynn D. Abernethy, Jr., Plaintiffs, v. Robert RUBIN, Ronald A. Glazer, Michael Morgan-Gaide, Nelson A. Brooke, Paul Harrington, Robert M. Finer, Gilbert Casellas, and Ronald Blumenthal, Defendants.

Civil Action No. 1:96-CV-2320FM.

United States District Court, N.D. Georgia,

April 25, 1997.

W. Gilbert Storey, Decatur, GA, for Plaintiffs.

Amy Berne Kaminshine and Lori Beranek, Office of U.S. Attorney, N.D. Ga., Stephanie Garner Thompson, E.E.O.C., Washington, DC, for Defendants.

ORDER

HULL, District Judge.

Plaintiffs W. Gilbert Storey and Lynn D. Abernethy, Jr. bring this action against Defendants under the Mandamus and Venue Act, the Administrative Procedure Act (NAPAU), the Age Discrimination in Employment Act ("ADEA"), and Title VII of the Civil Rights Act of 1964. This matter is before the Court on Defendants' Motions to Dismiss [7-1; 8-1].

I. PLAINTIFFS' FACTUAL ALLEGATIONS

Plaintiffs, employees of the Internal Revenue Service ("IRS"), allege that the IRS discriminated against Plaintiff Storey based on his age, race, and sex in not selecting Plaintiff Storey for certain positions for which Plaintiff Storey applied. Plaintiff Storey filed an administrative complaint of discrimination and the IRS and the EEOC investigated Plaintiff Storey's administrative complaint. During the administrative process, Plaintiff Abernethy acted as Plaintiff Storey's personal representative.

Plaintiffs brought this action not to review the merits of Plaintiff Storey's allegations of discrimination, but rather to challenge certain practices employed by Defendants in investigating and processing Plaintiff Storey's administrative complaint of discrimination. The Court first outlines the facts concerning Defendants' investigation and processing of Plaintiff Storey's administrative complaint.

A. Plaintiff Storey Files Administrative Complaint Of Discrimination

On August 10, 1995, Plaintiff Storey filed a formal administrative complaint of discrimination against Defendants Robert Rubin, Ronald A. Glazer, and Michael Morgan-Gaide.¹ In his administrative complaint, Plaintiff Storey alleged (1) that he was discriminated against when he was not selected for the position of GS-512, Revenue Agent under Vacancy Announcement Number 95-FOO67B allegedly because of his age (55), color (white), race (white), and sex (male), which discrimination allegedly became a continuing violation when Plaintiff Storey was not selected to fill three later vacancies; and (2) that the IRS's employment policies and initiatives "foster a performance appraisal system that disparately impacts Caucasian males with regard to recruitment, development and promotion of Revenue Agents in the Atlanta District." Complaint, ¶ 5. Plaintiff Storey designated Plaintiff Abernethy to act as his personal representative during the administrative process.

B. The IRS Accepts Plaintiff Storey's Complaint For Investigation

1. The IRS Investigates Only One of Plaintiff Storey's Claims and Refuses to Grant Plaintiff Abernethy Official Time to Participate in the Complaint Process

On October 13, 1995, the IRS notified Plaintiff Storey that his administrative complaint was accepted for investigation on these two issues. However, Plaintiffs allege that the individual assigned to investigate Plaintiff Storey's administrative complaint was instructed not to investigate issue number 2. Also according to Plaintiffs, while both Plaintiffs requested official time to meet with the individual investigating Plaintiff Storey's administrative complaint, only Plaintiff Storey's request for official time was granted. Plaintiff Abernethy subsequently requested and was granted personal annual leave time in order to participate in the complaint processing.

In February 1996, the individual assigned to investigate Plaintiff Storey's administrative complaint transmitted his report to Defendant Morgan-Gaide. Instead of transmitting the report to Plaintiffs, Defendant Morgan-Gaide requested Plaintiff Storey to consent in writing to an extension of the 180 investigation by an additional 90 days.² Plaintiff Storey did not consent to an extension. In the Spring of 1996, Plaintiffs contacted Defendant Morgan-Gaide several times about receiving the investigator's report. During this time, Plaintiffs also requested to have a hearing before an administrative judge of the EEOC.

2. Plaintiffs Obtain Copy of Investigator's Report and the Case is Assigned to an EEOC Administrative Judge

When Plaintiffs still did not get a copy of the investigator's report, Plaintiff Abernethy notified Defendant Morgan-Gaide of Plaintiffs' intention to request a copy of the report under the Privacy Act. At this point, Defendant Morgan-Gaide sent Plaintiff Abernethy a copy of the report. Simultaneously, Defendant Morgan-Gaide requested Chairman of the Equal Employment Opportunity Commission ("EEOC") Defendant Gilbert Casellas to assign the matter to an EEOC administrative judge. The matter was assigned to Administrative Judge Marcy D. Louza. By order dated July 15, 1996, Judge Louza authorized discovery by both parties.

Plaintiffs served discovery requests on the IRS. Plaintiffs allege (1) that IRS counsel Defendant Robert Finer informed Plaintiffs and Judge Louza that he did not intend to address the continuing violation portion of issue number 1; and (2) that Defendant Finer refused to respond to discovery requests on issue number 2, claiming that issue number 2 was a class action matter. After Plaintiff Abernethy allegedly responded with authority to the contrary (regarding Defendant Finer's stance, i.e. a class action), Judge Louza informed Defendant Finer that the issue was appropriate for a hearing. Defendant Finer nonetheless continued to refuse to respond to discovery requests relating to issue number 2.

3. Plaintiffs Attempt to Compel Defendants to Grant Plaintiff Abernethy Official Time to Participate in the Complaint Process and to Compel Defendants to Respond to Discovery Requests

Subsequently, Plaintiffs filed a motion for an order directing Defendant Rubin to grant Plaintiff Abernethy a reasonable amount of official time to participate in the complaint processing and a motion to compel Defendant Rubin to produce the requested documents pertaining to issue number 2. Judge Louza denied Plaintiffs' motion for official time, citing her lack of authority to issue such an order. As for Plaintiffs' motion to compel, Defendant Finer advised Judge Louza that Defendant Rubin intended to retroactively dismiss the continuing violation portions of issue number 1 and all of issue number 2. In September 1996, Defendant Finer sent Judge Louza and Plaintiff Abernethy a copy of Defendant Rubin's dismissal of portions of issue number 1 and all of issue number 2 and Judge Louza informed Plaintiff Abernethy that the EEOC was accepting the dismissal. Judge Louza also informed Plaintiffs of their right to appeal to the Office of Federal Operations ("OFO") of the EEOC.

C. Plaintiffs Bring This Instant Cause Of Action

Plaintiffs never appealed to the OFO. Instead, Plaintiffs brought this action against Defendants Rubin, Glazer, Morgan-Gaide, Finer, and Casellas, as well as Defendants Nelson A. Brooke, Paul Harrington, and Ronald Blumenthal.³ Plaintiffs do not request the Court to review the substantive issues alleged in Plaintiff Storey's administrative complaint. Rather, Plaintiffs request this court to review the administrative process itself as it relates to (1) the IRS's dismissing portions of issue number 1 and all of issue number 2 of Plaintiff Storey's administrative complaint; (2) the IRS's alleged refusal to respond to certain discovery requests; (3) the IRS's denial Plaintiff's request for official time; and (4) generally, the IRS's alleged arbitrary and capricious handling of Plaintiff Storey's administrative complaint.

II. DISCUSSION

A. The Mandamus And Venue Act

Plaintiffs proceed primarily under the Mandamus and Venue Act, 28 U.S.C. § 1361. Plaintiffs seek a writ of mandamus compelling Defendants (1) to investigate all of the issues alleged in Plaintiff Storey's administrative complaint, (2) to award "reasonable" official time to Plaintiff Abernethy, and (3) to respond to all "reasonable" discovery requests. The Court finds that mandamus relief is not proper in this case for the following reasons.

Under the Mandamus and Venue Act, "district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. The remedy of mandamus is considered a drastic one that should be awarded only in extraordinary situations. See Mallard v. United States District Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989); Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189, 66 L.Ed.2d 193 (1980). To be entitled to mandamus, a plaintiff/petitioner must demonstrate (1) a clear right to the relief he requests, (2) a clear, non-discretionary duty in the respondent/defendant to perform the action sought, and (3) the absence of an adequate alternative remedy. Mallard, 490 U.S. at 309, 109 S.Ct. at 1822; Stephens v. Dept. of Health & Human Servs., 901 F.2d 1571, 1576 (11th Cir.1990); District Lodge No. 166 v. TWA Servs. Inc., 731 F.2d 711, 717 (11th Cir.1984) (quoting Carter v. Seamans, 411 F.2d 767, 773 (5th Cir.1969)). The burden of showing each element is on Plaintiffs. See Mallard, 490 U.S. at 309, 109 S.Ct. at 1822; In re Special March 1974 Grand Jury, 541 F.2d 166, 171 (7th Cir.1976).

This case does not present the extraordinary type of situation that warrants mandamus relief. As an initial matter, Plaintiffs have not shown a clear right to the relief they request. More importantly, however, Plaintiffs have an adequate alternative remedy. Plaintiffs sought the relief they seek here through mandamus during...